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TMI Blog1987 (9) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... a Hotel at Delhi, the Room No. 645 of the said Hotel was searched on 20th April, 1982. D'Souza, one Jogi Mangal and one Haribhai Tandel were found in the said room and on a preliminary inquiry, it was revealed that they had come to Delhi from Bombay in the morning of 9th April, 1982, by the Indian Airlines flight. Further, on personal search of the said Tandel some articles, such as a telephone index diary, some loose documents and one Indian Airlines ticket for Bombay-Delhi-Bombay were recovered from his possession. The said loose documents, according to the complainant were prima facie revealing the receipt and disposal of massive quantities of smuggled gold as also transfer of huge amounts of sale proceeds through unlawful channels. 3. It is alleged that on the basis of such documents, the Directorate of Revenue Intelligence proceeded with the investigation and the same disclosed that Tandel, who is a resident of Nani Daman, has also a flat in Bombay. On interrogation, he explained the various entries in the said documents and it was found that during the period starting on 30th December, 1981, and ending on 26th January, 1982, 3810 tolas of gold of foreign origin had been sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Another) decided on 19th January, 1987, in (Mitin Ramanlal Shah v. Dayashankar & Others), decided on 20th March, 1987, in (Smt. Paru Mrugesh Jaikrishna v. Assistant Collector of Customs, Marine & Preventive Wing/Department, Bombay and Another) decided on 11th June, 1987 and in (Arvind V. Inamdar v. Assistant Collector of Customs, Marine & Preventive Wing, Bombay & Anr.) decided on 17th/20th July, 1987. It was submitted that as held in the aforesaid judgments, no prosecution can be initiated or launched only on the basis of a confessional statement of a co-accused, and hence, in the present case where the prosecution was launched only on the basis of the statement given by Tandel under Section 108 of the Customs Act, no process was to be issued for the documents allegedly found in possession of the petitioners, constitute mere corroboration of the said inculpatory statement made by Tandel. 8. Mr. Namjoshi, the learned Special Public Prosecutor appearing for the respondent No. 1, however, sought to distinguish the aforesaid judgments of this Court. He contended that the correct Jaw was not laid down in the said judgments as while delivering the said decisions, some relevant cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws that if such statement is relied upon in a complaint, the same is to be construed by the Magistrate dealing with such complaint, not as a confessional statement of a co-accused, but as an independent piece of evidence which is to be considered for the purpose of arriving at a finding as to whether or not a prima facie case exists for issuing process. The judgments of the Single Judges of this Court had not dealt with this particular aspect of a statement under Section 108 of the Customs Act, and, therefore, he urged, are not good law in support of the proposition that process cannot be issued on the basis of statements recorded under Section 108 of the Customs Act. 9. Section 108 of the Customs Act, 1962, provides that 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 in connection with the smuggling of any goods. Sub-section (2) provides that a summons to produce documents or other things may be issued. Sub-section (3) lays down that all persons who are summoned shall be bound to attend either in person or b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the contention of the appellant. In the light of these principles, it is clear that when the statement of the appellant was recorded by the Customs Officer under Section 108, the appellant was not a person 'accused' of any offence under the Customs Act, 1962. An accusation which would stamp him with the character of such a person was levelled only when the complaint was filed against him, by the Assistant Collector of Customs complaining of the commission of offences under Section 135 (a) and Section 135(b) of the Customs Act." 10. Mr. Namjoshi is therefore, wrong in his contention that in the circumstances, the statement recorded by the Customs Authorities under Section 108 of the Customs Act cannot be construed to be a statement of an accused or co-accused which is being used against other co-accused. This submission has obviously no merit in the light of the law laid down by the Supreme Court in the above cases. Certainly, it is true that when a statement is recorded by the Customs Officer under Section 108, the person giving the statement is not yet an accused. But the situation undergoes a complete and basic change the moment a criminal complaint is filed and the said per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be made the foundation of a conviction. Though there observations were made in respect of a conviction, none-the-less, they are also relevant and apply at the stage of issuing process, for if the only foundation or basis for the complaint is a statement of a co-accused and no other evidence exists for launching the prosecution, it is obvious that the case as made out cannot lead in, any event, to a conviction. This being the case, the contentions of Mr. Namjoshi cannot, in my opinion, be accepted and it has to be held that the decisions of the Single Judges of this Court mentioned above are good law, the particular view advanced by Mr. Manjoshi being irrelevant and with no force. I am thus satisfied that the law laid down in the said decisions is correct and does not, as such require to be reconsidered. 12. The facts which constitute the basis of the complaint were already mentioned as adumbrated. A careful analysis of these facts and the complaint leaves no margin for doubts. The only basis for a launching the prosecution against the petitioners undoubtedly is the inculpatory statement made by 'Tandel, the accused No. 1, under Section 108 of the Customs Act, implicating al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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