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TMI Blog2024 (12) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 108 of the Customs Act, 1962 made before the customs officials that he is known to Vikas Rastogi for the last two years, who owes a shop namely M/S Maa Bhagwati Jewelers and he is also engaged in the gole business having his own shop named as Ritesh Silver Point and he uses to purchase gold bullion from said Vikas Rastogi and sells it to the customers and since they trade in cash only so no record thereof is maintained by them. The statements recorded under Section 108 Customs Act are the statements of a distinguish class and there stand on a different footing in companion of the applicants recorded under section 161 of CrPC and moreover, such statements are always admissible in evidence. It is also settled that a statement recorded under Section 108 of The Customs Act is a material piece of evidence collected by custom officers under The Customs Act. In Naresh J. Sukhawani Vs. Union of India [ 1995 (11) TMI 106 - SUPREME COURT ], it has been expressly held that while illegally exporting foreign currency a statement made by the co-accused can be used as evidence against the others and this theory is applicable to a case under The Customs Act,1962. Since the instant case ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so called confession made by co-accused Vikas Rastogi in respect of smuggling of foreign origin gold from Bangladesh and further his statement that he was intending to sell the said gold to small traders and artisans at Mirzapur like Ritesh Soni, Raju Soni and Pradeep Soni are false and on the basis of the statement of co-accused Vikas Rastogi the name of the present applicant was roped in this matter. It is further submitted that the call detail report was obtained by the complainant to connect the present applicant with the main accused Vikas Rastogi, which is not a legal piece of evidence. It is further submitted that the present applicant is a small trader of gold and main accused Vikas Rastogi is also deployed in the same business and only on the basis of having some mobile chat with the main accused Vikas Rastogi no offence could be made out against the present accused applicant. It is further submitted that the applicant has no criminal history to his credit. It is further submitted that the complaint has already been filed and there is no likelihood to him to fleeing away from the process of the Court. 4. Per contra, the learned counsel for the Union of India has vehemently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also been prayed for. 7. A perusal of the record reveals that the statement made by co-accused Vikas Rastogi under Section 108 of the Customs Act, 1962 was not the only ground on the basis whereof the summoning order was passed against the present applicant. He in his statement recorded under Section 108 of the Customs Act, 1962 before the customs officials has admitted that he has been indulged in the crime of sale, purchase and carrying illegal smuggled gold for long and further he stated that he was on way to Mirzapur with the smuggled foreign gold where he would have sold the same to Ritesh Soni, Raj Soni and Pradip Soni. He further states that he along with Ritesh Soni used to deal with the illicit trade of foreign gold and both had been in continuous touch in this respect and it was also found by the custom officers that both the accused persons used to make regular call to each other even in odd hours and that too for long duration. 8. Not only the co-accused Vikas Rastogi but also the present applicant Ritesh Kumar Soni states in his statement under Section 108 of the Customs Act, 1962 made before the customs officials that he is known to Vikas Rastogi for the last two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded under section 161 of CrPC and moreover, such statements are always admissible in evidence. It is also settled that a statement recorded under Section 108 of The Customs Act is a material piece of evidence collected by custom officers under The Customs Act. 12. More significantly, in Naresh J. Sukhawani Vs. Union of India JT 1995 (8) SC 160 , it has been expressly held that while illegally exporting foreign currency a statement made by the co-accused can be used as evidence against the others and this theory is applicable to a case under The Customs Act,1962. 13. On the basis of the aforesaid legal position, it emerges out that the statement made by both the accused persons Vikas Rastogi and Ritesh Kumar Soni are binding upon each other. They were bound to state the truth by virtue of Section 108 (3) of the Customs Act and further the said statements are in true sense confessions made by both the accused persons and they cannot escape their liability in the light of the aforesaid statements rendered by them to the customs officials. 14. A perusal of the record reveals that there was sufficient prima facie evidence against the present accused/ applicant. The summoning order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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