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TMI Blog2012 (10) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... Crl. Rev.P. No. 516/2008 - - - Dated:- 24-4-2012 - Mukta Gupta, J Appellant Rep. by : Mr. Naveen Malhotra, Mr. Nitendra Kumar, Advocates Respondent Rep. by : Mr. Satish Aggarwala, Advocate JUDGEMENT 1. By this petition the Petitioner seeks setting aside of order dated 20th June, 2008 whereby the Learned ACMM, New-Delhi ordered framing of charges against the Petitioner under Section 135 A of the Customs Act, 1962 and the consequential order dated 18th August, 2008 framing charge in case No.507/1 titled as R.K. Virmani Vs. Shri. Krishan. 2. Learned counsel for the Petitioner contends that the statement of the Petitioner recorded under Section 108 of the Customs Act is exculpatory in nature and the statement of Virender Singh Batra, recorded under Section 108 of the Customs Act, 1962 cannot be relied upon for the purpose of framing charges as he was not examined as a witness in terms of Section 244 Cr.P.C in the complaint case. Reliance is placed on Mohtesham Mohd. Ismail Vs. Spl. Director, Enforcement Directorate Anr. 2007 (11) SCALE 741. Relying on Ripen Kumar Vs. Department of Customs, 2001 Cr.LJ 1288 and Anand Kumar Vs. Naresh Arora, 2006 (3) JCC 1491 it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the statement of Virender Singh Batra, recorded under Section 108 Customs Act, cannot be looked at for the purpose of framing charges as he was not examined under Section 244 Cr.P.C., it would be necessary to reproduce Section 108 of the Customs Act: SECTION 108. Power to summon persons to give evidence and produce documents. (1) Any Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required : Provided that the exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings. On the contrary the officers recording the statement were only doing their duty in bringing to the notice of the appellant the provisions of the statute. Even if PW 5 had not drawn the attention of the appellant to the fact that the inquiry conducted by him is deemed to be a judicial proceeding, to which Section 193 IPC applies, the appellant was bound to speak the truth when summoned under Section 108 of the Act with the added risk of being prosecuted, if he gave false evidence. 7. In Ramesh Chandra Mehta v. the State of West Bengal, AIR 1970 SC 940 , the Constitution Bench while examining the admissibility of a statement recorded under Section 171A of the Sea Customs Act, 1878 (now repealed) corresponding to Section 108 of the Customs Act, 1962 held: 24. In certain matters the Customs Act of 1962 differs from the Sea Customs Act of 1878. For instance, under the Sea Customs Act search of any place could not be made by a Customs Officer of his own accord: he had to apply for and obtained a search warrant from a Magistrate. Under Section 105 of the Customs Act, 1962, it is open to the Assistant Collector of Customs himself to issue a search warrant. A proper o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the co-accused. In case the accomplice is cited as a witness then it is essential to examine him under Section 244 Cr.P.C. However if the confession of the co-accused made to any person has to be proved, then the confession so recorded has to be exhibited like any other document under Section 244 Cr.P.C. At this stage it would also be relevant to reproduce Section 244 Cr.PC:- Sec. 244 Evidence for prosecution. (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing . 10. Sub-Section (1) of Section 244 Cr.P.C. employs the words 'shall' and 'may'. So when these two words are used together in Sub-Section (1) of Section 244 Cr.P.C., in the sense that they are generally used, denote that words the Magistrate shall proceed to hear would mean that the Magistrate is under a duty to hear the witnesses at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed . 12. It was further observed by this Court in Mathura Dass Ors. vs. State 2003(2) JCC 639 as:- 7. After considering the submissions made by learned counsel for the parties and examining the material on record, this Court is of the considered view that a Judge, at the time of framing of charge, is not to act merely as a post-office or mouth-piece of the prosecution, but has powers to sift and weigh the evidence but for a limited purpose only. This exercise has to be undertaken by him only with a view to find out as to whether a prima facie case is made out or not. The existence of a prima facie case may be found even on the basis of strong suspicion against an accused. The assessment, evaluation and weighing of the prosecution evidence in a criminal case at the final stage is on entirely different footing than it is at the stage o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. The learned Counsel for the Petitioner has placed reliance on Mohtesham Mohd. Ismail Vs. Spl. Director, Enforcement Directorate Anr. (2007) 8 SCC 254 in support of his contention that the statement recorded u/s 108 Customs Act cannot be looked at the stage of framing charge as the same was not recorded under Section 244 Cr.P.C at the pre-trial stage. However, on perusal of the said judgment especially para 20, it is evident that the Hon'ble Supreme Court has stated that such statements are, although, not inadmissible, they should be scrutinized by the Court in the same manner as confessions made by an accused person to any non-police personnel. Thus, according to the Hon'ble Supreme Court it should also pass the test of Section 24 of the Evidence Act. It was held:- 20. In the Assistant Collector of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a witness if the person before whom the confession is made is examined under Section 244 Cr.PC. As can be observed from the conjoint reading of the judgments in Percy Rustomji Basta (supra), Ramesh Chandra v. the State of West Bengal (supra), Naresh J. Shukawani(Supra.) and Paramjit Singh (Supra.), a statement recorded by Customs officer under section 108 of the Customs Act,1962 is admissible in evidence and not hit by provisions of Article 20(3) of the Constitution or Section 25 of the Evidence Act. Further, such statement is presumed to be truthful as it is recorded under a proceeding which is judicial in nature and if upon such statement a prima facie case can be made out for framing the charge, by virtue of R.S. Nayak (Supra) and Mathura Das (supra), the Magistrate is well within his powers to order framing of charges. 18. Thus, though Virender Singh Batra was not called as a witness, his statement, recorded under Section 108 Customs Act, can definitely be looked at the stage of framing charges by virtue of the judgments aforementioned. Further the said statement of Virender Singh Batra stands proved by the testimony of PW1 Subhash Narayan who in his statement under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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